iswar Juanga Vs. State of Orissa

Decided On : Jun-29-2007

Court : Orissa

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			'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  1 to 4 argues that the trial Court failed to appreciate the prosecution case regarding the quarrel between the accused and the deceased so as to attract the provision of Section 304, IPC relating to culpable homicide not amounting to murder. We do not forget the fact that the appellant as well as the deceased are tribals belonging to Keonjhar district. Their life style is adopted to such type of quarrel and sometimes at the spur of moment persons like the accused unable to control the temper and they commit offence of the present nature.',
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		'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  1 to 4 argues that the trial Court failed to appreciate the prosecution case regarding the quarrel between the accused and the deceased so as to attract the provision of Section 304, IPC relating to culpable homicide not amounting to murder. We do not forget the fact that the appellant as well as the deceased are tribals belonging to Keonjhar district. Their life style is adopted to such type of quarrel and sometimes at the spur of moment persons like the accused unable to control the temper and they commit offence of the present nature.',
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			'appellant' => 'iswar Juanga',
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			'casename' => 'iswar Juanga Vs. State of Orissa',
			'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  1 to 4 argues that the trial Court failed to appreciate the prosecution case regarding the quarrel between the accused and the deceased so as to attract the provision of Section 304, IPC relating to culpable homicide not amounting to murder. We do not forget the fact that the appellant as well as the deceased are tribals belonging to Keonjhar district. Their life style is adopted to such type of quarrel and sometimes at the spur of moment persons like the accused unable to control the temper and they commit offence of the present nature.',
			'caseanalysis' => null,
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			'court' => 'Orissa',
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			'decidedon' => '2007-06-29',
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			'judge' => ' P.K. Tripathy and; R.N. Biswal, JJ.',
			'judgement' => '<p style="text-align: justify;">1. Heard.</p><p style="text-align: justify;">2. Order of conviction under Section 302, IPC and sentence of imprisonment for life imposed by learned Sessions Judge, Keonjhar on accused-appellant in Sessions Trial Cue No, 44 of 1994 is under challenge,</p><p style="text-align: justify;">3. Prosecution case in inert is that en 21-11- 1993 in the afternoon accused picked up quarrel with his wife Lila (hereinafter referred to as deceased) and in that process dealt a slab blow to her belly by use of the knife (M.O.I.) and as result of that the deceased died. Neighbourers of the accused came to the spot and found that deceased was lying dead and accused was sitting holding the blood stained knife in his hand and to the query of some of the co-villagers (that includes P.W. 1) accused made extra judicial confession relating to the crime. When the villagers wanted to go near him, accused retaliated and because of that with the help of P.W. 4, a co-villager and other witnesses (P.Ws. 1, 2 and 3) overpower the accused and tied him before proceeding to Police Station to lodge the report. After receipt of the FIR a routine investigation was conducted and ultimately charge-sheet was filed.</p><p style="text-align: justify;">4. To substantiate the case, prosecution examined as many as ten witnesses and relied on documents marked Exts. 1 to 11 and material object. M.O. I. P.Ws. 1 to 4 are co-villagers of the accused. Each of them saw the accused sitting at the scene of occurrence holding the knife and the deceased lying dead with the injury. As noted above, P.W. 1 also stated about the extra judicial confession made by the accused. P.W. 9 is the doctor who conducted post-mortem examination and proved the post-mortem report (Ext. 9). On assessment of evidence on record, learned Sessions Judge found the deceased to have suffered homicidal death because of single stab blow given to the lower abdomen causing punctured wound of size 1' x 1' x 5' and that injury was sufficient in ordinary course to cause death of the deceased. Learned Sessions Judge also recorded the finding that evidence of P.Ws. 1 to 4 leaves no room for doubt about complicity of accused in committing the murder of his wife. Accordingly he found the accused guilty and convicted him under Section 302, IPC.</p><p style="text-align: justify;">5. After placing the whole fact, the evidence and the findings recorded by the trial Court, learned Counsel for the appellant finding no discrepancy in the evidence of P.Ws. 1 to 4 argues that the trial Court failed to appreciate the prosecution case regarding the quarrel between the accused and the deceased so as to attract the provision of Section 304, IPC relating to culpable homicide not amounting to murder. Accordingly he argues that under the given fact and evidence, accused may be convicted only for the offence under Section 304, Part-I, IPC Mr. Mohanty, learned Addl. Standing counsel argues that when the single stab blow was sufficient in ordinary course of nature to cause the death, the offence is made under Section 302, IPC. He further does not reply to the argument of the appellant that the incident took place due to sudden quarrel between the husband and wife.</p><p style="text-align: justify;">6. Regard being had to the aforesaid submission, evidence on record and the findings recorded by the trial Court we find that learned Sessions Judge did not properly appreciate the preceding fact giving rise to dealing stab blow by the accused. As indicated earlier, it is the prosecution case that because of a quarrel between the husband and wife the accused dealt the stab blow. We do not forget the fact that the appellant as well as the deceased are tribals belonging to Keonjhar district. Their life style is adopted to such type of quarrel and sometimes at the spur of moment persons like the accused unable to control the temper and they commit offence of the present nature. Regard being had to all such circumstances, we feel it appropriate that the appellant be convicted under Section 304, Part-I, IPC instead of offence under Section 302, IPC. Accordingly we modify the conviction and the sentence.</p><p style="text-align: justify;">7. In other words, the order of conviction under Section 302, IPC is set aside together with the sentence of imprisonment for life and in its place appellant is convicted under Section 304, Part-I, IPC and is sentenced to undergo R.I. for ten years.</p><p style="text-align: justify;">8. It is stated at the Bar that in the meantime, as under trial prisoner and convict, the appellant has already spent more than ten years inside the jail. If that be so, then the appellant be released from jail custody forthwith unless his detention in jail is required in connection with any other case. The Jail Criminal Appeal is accordingly allowed in part.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2008CriLJ2752',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa',
			'sub' => 'Criminal',
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$title_for_layout = 'iswar Juanga Vs. State of Orissa Semantic Analysis'
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		(int) 3 => 'P.W. 4',
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		(int) 6 => 'Learned Sessions',
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		(int) 11 => 'IPC',
		(int) 12 => 'Court',
		(int) 13 => 'IPC',
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		(int) 18 => 'The Jail Criminal Appeal'
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	'PERSON' => array(
		(int) 0 => 'Keonjhar',
		(int) 1 => 'Lila',
		(int) 2 => 'Exts',
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		(int) 4 => 'Mohanty',
		(int) 5 => 'Addl'
	),
	'DATE' => array(
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		(int) 1 => '21-11- 1993',
		(int) 2 => 'more than ten years'
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		(int) 1 => 'P.W. 9'
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	'GPE' => array(
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		(int) 1 => 'Keonjhar',
		(int) 2 => 'R.I.'
	)
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		'acts' => '',
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		'appellant' => 'iswar Juanga',
		'authreffered' => '',
		'casename' => 'iswar Juanga Vs. State of Orissa',
		'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  1 to 4 argues that the trial Court failed to appreciate the prosecution case regarding the quarrel between the accused and the deceased so as to attract the provision of Section 304, IPC relating to culpable homicide not amounting to murder. We do not forget the fact that the appellant as well as the deceased are tribals belonging to Keonjhar district. Their life style is adopted to such type of quarrel and sometimes at the spur of moment persons like the accused unable to control the temper and they commit offence of the present nature.',
		'caseanalysis' => null,
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		'court_type' => 'HC',
		'decidedon' => '2007-06-29',
		'deposition' => '',
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		'findings' => null,
		'judge' => ' P.K. Tripathy and; R.N. Biswal, JJ.',
		'judgement' => '<p style="text-align: justify;">1. Heard.</p><p style="text-align: justify;">2. Order of conviction under Section 302, IPC and sentence of imprisonment for life imposed by learned Sessions Judge, Keonjhar on accused-appellant in Sessions Trial Cue No, 44 of 1994 is under challenge,</p><p style="text-align: justify;">3. Prosecution case in inert is that en 21-11- 1993 in the afternoon accused picked up quarrel with his wife Lila (hereinafter referred to as deceased) and in that process dealt a slab blow to her belly by use of the knife (M.O.I.) and as result of that the deceased died. Neighbourers of the accused came to the spot and found that deceased was lying dead and accused was sitting holding the blood stained knife in his hand and to the query of some of the co-villagers (that includes P.W. 1) accused made extra judicial confession relating to the crime. When the villagers wanted to go near him, accused retaliated and because of that with the help of P.W. 4, a co-villager and other witnesses (P.Ws. 1, 2 and 3) overpower the accused and tied him before proceeding to Police Station to lodge the report. After receipt of the FIR a routine investigation was conducted and ultimately charge-sheet was filed.</p><p style="text-align: justify;">4. To substantiate the case, prosecution examined as many as ten witnesses and relied on documents marked Exts. 1 to 11 and material object. M.O. I. P.Ws. 1 to 4 are co-villagers of the accused. Each of them saw the accused sitting at the scene of occurrence holding the knife and the deceased lying dead with the injury. As noted above, P.W. 1 also stated about the extra judicial confession made by the accused. P.W. 9 is the doctor who conducted post-mortem examination and proved the post-mortem report (Ext. 9). On assessment of evidence on record, learned Sessions Judge found the deceased to have suffered homicidal death because of single stab blow given to the lower abdomen causing punctured wound of size 1' x 1' x 5' and that injury was sufficient in ordinary course to cause death of the deceased. Learned Sessions Judge also recorded the finding that evidence of P.Ws. 1 to 4 leaves no room for doubt about complicity of accused in committing the murder of his wife. Accordingly he found the accused guilty and convicted him under Section 302, IPC.</p><p style="text-align: justify;">5. After placing the whole fact, the evidence and the findings recorded by the trial Court, learned Counsel for the appellant finding no discrepancy in the evidence of P.Ws. 1 to 4 argues that the trial Court failed to appreciate the prosecution case regarding the quarrel between the accused and the deceased so as to attract the provision of Section 304, IPC relating to culpable homicide not amounting to murder. Accordingly he argues that under the given fact and evidence, accused may be convicted only for the offence under Section 304, Part-I, IPC Mr. Mohanty, learned Addl. Standing counsel argues that when the single stab blow was sufficient in ordinary course of nature to cause the death, the offence is made under Section 302, IPC. He further does not reply to the argument of the appellant that the incident took place due to sudden quarrel between the husband and wife.</p><p style="text-align: justify;">6. Regard being had to the aforesaid submission, evidence on record and the findings recorded by the trial Court we find that learned Sessions Judge did not properly appreciate the preceding fact giving rise to dealing stab blow by the accused. As indicated earlier, it is the prosecution case that because of a quarrel between the husband and wife the accused dealt the stab blow. We do not forget the fact that the appellant as well as the deceased are tribals belonging to Keonjhar district. Their life style is adopted to such type of quarrel and sometimes at the spur of moment persons like the accused unable to control the temper and they commit offence of the present nature. Regard being had to all such circumstances, we feel it appropriate that the appellant be convicted under Section 304, Part-I, IPC instead of offence under Section 302, IPC. Accordingly we modify the conviction and the sentence.</p><p style="text-align: justify;">7. In other words, the order of conviction under Section 302, IPC is set aside together with the sentence of imprisonment for life and in its place appellant is convicted under Section 304, Part-I, IPC and is sentenced to undergo R.I. for ten years.</p><p style="text-align: justify;">8. It is stated at the Bar that in the meantime, as under trial prisoner and convict, the appellant has already spent more than ten years inside the jail. If that be so, then the appellant be released from jail custody forthwith unless his detention in jail is required in connection with any other case. The Jail Criminal Appeal is accordingly allowed in part.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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LAW: Section 302, Section 302, Section 304, Section 304, Section 302, Section 304, Section 302, Section 302, Section 304

CARDINAL: 1, 44, 1, 2, 3, as many as ten, 1 to 11, 1 to 4, 9, 1, 1, 5, 1 to 4, 1 to 4, ten

ORG: IPC, M.O.I., P.W. 1, P.W. 4, FIR, Ext, Learned Sessions, Court, Court, IPC, IPC, IPC, Court, IPC, IPC, IPC, IPC, Bar, The Jail Criminal Appeal

PERSON: Keonjhar, Lila, Exts, M.O. I. P.Ws, Mohanty, Addl

DATE: 1994, 21-11- 1993, more than ten years

TIME: afternoon

NORP: P.Ws, P.Ws, P.Ws

PRODUCT: P.W. 1, P.W. 9

GPE: Counsel, Keonjhar, R.I.